Not a day goes by without someone remarking that social media is a “cesspool.” The internet overflows with misogynist, anti-LGBT, racist, fascist, and even openly genocidal sentiments, some coming from the highest reaches of government. Snarky male right-wing influencers edgelord over popular discourse, claiming to say the bigoted and cruel things that “everyone is thinking.” Still, there has been something conspicuously absent from this execrable miasma: “smut”—that is, commercial sexuality, sexual imagery or just nudity, and sexual remarks. On Parler, which has served as a clearinghouse for far-right and neo-fascist ideology, one can post effusive praise for Andrew Tate and his pro-rape female-slavery agenda, but one cannot post a topless photo of a feminist protesting the shirt-wearing double standard.
Free-speech-absolutist platform Parler’s prohibition of content involving “nudity” and “explicit adult material or language” is one of myriad examples of the “sexual safety” default in online regulatory governance explored by Brenda Dvoskin and Thomas Kadri in their consequential article, Safe Sex in the Age of Big Tech Feminism. Now, sex exceptionalism in media regulation is hardly a modern phenomenon. In the traditional movie-rating context, one could always more easily see bodies being riddled with bullets than bodies coming together in sexual activity. Nor is it a novel question whether the agenda of broadening the reach of criminal law over sexual conduct is a “feminist” one, having been debated since the famous 1980s “sex wars” between anti-pornography and sex-radical feminists. On that debate, Kathy Abrams and Brenda Cossman provide excellent accounts, or one can go back to a classic book on the topic, Carole Vance’s edited collection, Pleasure and Danger.
Still, Safe Sex provides something new and desperately needed: a meticulous accounting of the complicated regulatory infrastructure governing sex in cyberspace and how its web of privileges and punishments reflect and reinforce certain ideas about sexuality and gender. The past decade has seen legal reforms addressing technology-enabled sexual misconduct—and conduct—amass at a dizzying pace with relatively little criticism outside of the civil libertarian free-speech arena. And, as the Parler anecdote suggests, the freest right-wing free-speakers have offered limited resistance to sexual censorship.
A crucial intervention in itself, the article catalogues the plethora of laws and policies that control sexual expression primarily on social media, but also interestingly on dating apps, where one might presume—wrongly, according to regulators—that sexuality is presumptively part of the experience. The regulatory web includes platforms’ self-imposed restrictions, administrative limitations, civil causes of action, and felony criminal laws. The array of regulated behaviors ranges from posting nudes and explicit sexual conversation to intentional harassment and child pornography. Because the regulatory scheme has tended toward overbreadth, whether due to bureaucratic creep, sex-regulatory creep, or fears of bad men exploiting “loopholes,” it does not just prohibit and punish uncontroversially harmful sexual conduct but functions to discipline the meaning of sexual communications in contested areas. In this way, online sexual regulation has produced culture, a gendered and gender-binary sexual culture.
In addition to creating and managing sexual culture, the authors argue, the online sexual-safety movement reinforces individual discipline as the default legal mechanism to address sexual harm and risk. When experts, activists, tech companies, and viral posts identify new or newly interesting sites of sexual harm and discomfort, proposals for new crimes shortly follow. Advocates moreover tend to champion easy-to-prove laws that give police and prosecutors the necessary “tools” to fight the identified problem, secure in their faith that these state actors will judiciously apply their newfound carceral power to the “real” bad actors. Thus, the problem of “revenge porn,” is publicized as hateful men widely disseminating nude photos of women for the express purpose of ruining their lives, but it spawns laws against “nonconsensual intimate image distribution” (NCII), which criminalize the disclosure of a nude image to any other person. Far from requiring the specific intent of revenge or harassment, the crime often does not require the defendant to know that the person depicted did not consent to dissemination. At the same, as Andrew Gilden has argued, limitations on what counts as a “private” image worth protecting effectively gives a pass to bad actors whose very goal is to harass and harm LGBT people and sex workers by disseminating their ostensibly “public” sexual images.
Or consider the cyberflashing laws created to criminalize unwanted “dick pics.” They tend to be broader than their IRL public lewdness counterparts—themselves a legacy of the vagrancy and vice-policing era—which often require the element of causing or intending to cause alarm. The authors note that in Texas, it is a crime to send a nude photo at all, unless the recipient has already expressly consented to receiving it. This makes texting a racy picture to a lover a crime even when the sender reasonably believes the recipient wants the photo, and even when the recipient does want it. The impetus behind this unusual substantive strict-liability law?: the high-profile founders of the “feminist” dating site Bumble thought it was a good idea.
In the cyberflashing example, “girl-boss” feminists’ presumption that female sexual agency requires the absence of male sexual prerogative created a real criminal law—one which ironically has the potential to punish girl bosses in the commercial sex industry who send unsolicited advertisements. Perhaps this is why Dvoskin and Kadri label the entire online sex-regulatory web “Big Tech feminism.” To be sure, the idea that male sexuality and even male body parts are tools of female subordination has a long pedigree in feminism and feminist legal theory. But the authors admit that a range of ideologies beyond dominance feminism are also at work, including old-school moralism, the liberal fetishization of privacy, and anti-“deviance” sentiments. So perhaps a better name would be Big Tech sexual protectionism, although it hardly rolls off the tongue. Whatever the label, the article does a terrific job of showing how a range of diverse ideologies have produced a legal scheme that simultaneously offers protection from some sexual harms as it creates fertile grounds for others to flourish, protects privacy as it reinforces gendered notions of chastity and discriminatory notions of deviance, and idiosyncratically punishes individuals as it normalizes society’s stigmatization of sexualized women.
Dvoskin and Kadri assert that the Big Tech feminism at the heart of the safety zeitgeist exhibits signature characteristics, what they name “the four P’s.” The scheme is “prudish, personal, punitive, and profitable.” There is much to debate about this characterization of sexual regulation in cyberspace. For now, let me just briefly explain the “four P’s, as the clever alliteration can come at the expense of clarity. By “prudish,” the authors signal that anti-sex ideologies, both left and right, have influenced internet regulation, from conservative distaste for open female sexuality and LGBT “deviance” to feminist accounts of heterosexual sex as mostly subordination. Of course, these ideologies are distinct, and the authors take care in arguing why the feminist equation of male sexuality with danger might not be so progressive—or good for women. After all, in a culture that designates one category of people as having a weapon and another as constantly needing protection from it, who wins? In addition, the idea that sexuality is a quintessentially and inherently a private matter underlies the anti-sex-ed agenda that leaves teens to learn about sexuality from misogynistic internet porn.
The authors use the “personal” and “punitive” descriptors to highlight the tendency of many law reformers, especially those concerned with sexual conduct, to prescribe individualistic disciplinary and criminal sanctions that (often falsely) promise deterrence, rather than structural, educational, and design reforms meant to prevent harmful behavior. By “profitable,” the authors mean not so much that sexual hyper-safety is good business, but that it has become entrenched as industry “best practices” in a way that makes sense within the logic of corporate governance and profit maximization.
In the end, the article puts a much-needed spotlight on a legal juggernaut: the criminal, civil, and administrative control of online sexual expression in the name of preventing harm to women and children. Like many criminal laws, these broad reforms rode in on a discourse of monstrous unrepentant male offenders and sexually innocent female victims. But they do little to deter the worst dark-web actors who are unlikely to get caught or individuals who deliberately harm already sexualized people. In fact, it is the ideology that sexuality—particularly female and LGBT sexuality—must be remain the closet that leads bosses to fire, friends to shun, and churches to expel women whose nudes become public. And the laws’ carceral reach will not be confined to the worst of the worst. Already FOSTA-SESTA has deterred online commercial sex advertising more than child sexual abuse, effectively making sex work riskier for women. NCII laws have swept in not just revenge pornographers but sexting teens and women exposing their partners’ infidelity. Research has found that sexual content moderation targets LGBT speech. I commend Dvoskin and Kadri, two relatively junior scholars, for taking a brave and controversial stance on a politically and emotionally charged topic that too many powerful commentators insist has only one valid side.
